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P. Swaminathan and ors. Vs. Presiding Officer, Central Government Labour Court, Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.P. Nos. 4314 to 4316 of 1978
Judge
Reported in(1983)IILLJ347Mad
ActsIndustrial Disputes Act, 1947 - Sections 33C(2)
AppellantP. Swaminathan and ors.
RespondentPresiding Officer, Central Government Labour Court, Madras and ors.
Cases ReferredState v. Nandalal Dey.
Excerpt:
.....service of supervisory, clerical and subordinate staff) scheme, 1974 - by virtue of clause 25 of scheme any agreement or award or other instrument contrary to provisions of scheme shall have no effect - scheme would override such agreement - any agreement or award which comes into existence subsequent to implementation of scheme even though contrary to provisions would be in order and can be implemented - scheme has got statutory force. - - 17 of the act have been satisfied. but, what is sought to be put against the petitioners is that the agreement or award or other instrument that was in force on the day when the scheme was implemented and any agreement or award or other instrument which come into existence subsequent to the implementation of the scheme was implemented and any..........and refers to indefinite state of facts which will arise in future and which may very form time to time. see elision v. thomas, 1862 31 l.j. ch. 867.' in union of indian v. ramdas oil mills, a.i.r. 1968 pat 352, a division bench of the patna high court held that the set of depressions 'for the time being in force' occurring in s. 47 of the arbitration act, 1940, as also in section 19(1) (g) of the defence of india act, 1939 refers to enactments existing at the time of the commencement of the act as well as those made thereafter. it is worth-while to note the meaning given to the set of expression 'time being' in stroud's judicial dictionary, 4th edition 1974. vol. 5, at page 2773, which runs as follows : 'time being ...... (1) the phrase 'for the time being' may, according to its.....
Judgment:
ORDER

1. The petitioners are employees of the second respondent. They secured orders for transfer at their own request and agreed to forego travelling allowances etc. on such transfers. The payment of travelling allowance on transfer is provided for in the General Insurance (Rationalisation and Revision of Pay Scales and other conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974, hereinafter referred to as the Scheme, which was framed by the Central Government pursuant to the powers under S. 16 of the General Insurance Business (Nationalisation) Act (Act 57 of 1972), hereinafter referred to as the Act. The applicability of the Act and the Scheme to the matters in hand is not in dispute. The petitioners chose to file Claim Petition No. 38 of 1976, before the first respondent under S. 33-C(2) of the Industrial Disputes Act 1947, praying for computation of the benefits of travelling allowance etc. due to them under the scheme. Respondents 2 and 3 herein, who were party respondents before the first respondents in the said claim petition, put forth a contest that the petitioners agree to waive the benefits of travelling allowance etc on transfers, the transfers having been effected at the specific request of the petitioners themselves, and hence they are disentitle from claiming the same. The first respondent assessed the question and upheld the contention of respondents 2 and 3 The first respondent, in any event, chose to compute the monetary benefits due to the petitioners; but however in view of the finding that the agreement to waive the benefits of travelling allowance on transfers will disentitle the petitioners form claiming the same, he did not grant an relief to the petitioners and the claim petition was dismissed. The present writ petitions have been field, impugning the order of the first respondent in the claim petition.

2. Before the first respondent, there was no dispute that the transfers were effected only at the specific request of the petitioners and on their agreeing to waive the benefits of travelling allowance etc. on such transfers. On behalf of the petitioners, reliance was placed on clause 25 of the Scheme which runs as follows :

'25. Overriding effect :- The provisions of this Scheme shall have effect notwithstanding anything to the contrary contained in any agreement, award of other instrument for the time being in force.'

3. It was submitted before the first respondent - and the same submission has been repeated before me - that by virtue of clause 25 of the Scheme, any agreement or award or other instrument contrary to the provisions of the Scheme shall have no effect and the Scheme will override such agreement. The respondent repelled the above submissions by holding that clause 25 of the Scheme could have reference only to an agreement or award or other instrument, which was in force on the day when the Scheme was implemented and the expressions 'for the time being in force' occurring in clause 25 of the Scheme covers only and agreement or award or other instrument in force on the day when the Scheme was implemented.

4. Mr. A. L. Somayaji, learned Counsel appearing for the petitioners, drew may attention to the silent provisions of the Act with a view to impress upon me the fact that the Scheme has got a statutory force and any agreement bargaining out of the statute can definitely be ignored and the party could insist for the benefits under the scheme being granted to him in spite of such agreement to the contrary. S. 16(1) of the Act state that the Central Government if it is of opinion that for the more efficient carrying on of general insurance business it is necessary to do so, it may, by notification, frame one or more schemes providing for all or any of the matters set out in clause (a) to (j) therein. Clause (g) refers to the Rationalisation and Revision of pay scales and other terms and conditions of service of officers and other employees. Sub-s. (4) of S. 16 reads as follows :

'If the rationalisation for revision of any pay scale or other terms and conditions of service under any scheme is not acceptable to any officer or other employee, the acquiring company may terminate his employment by giving him compensation equivalent to three months, remuneration, unless the contract of service with such employee provides for a shorter notice of termination.'

Sub-section (7) of Section 16 of the Act is also relevant and it runs as follows :

'The provisions of this section and of any scheme framed under it shall have effect notwithstanding anything to the contrary contained in any other law or any agreement, award or other instrument for time being in force.'

Under S. 17 of the Act, a copy of every scheme and every amendment thereto framed under S. 16 shall be laid, as soon as any be after it is made, before each House of Parliament. There is no dispute that the scheme has come to be formed pursuant to powers conferred by clause (g) of sub-section (1) of S. 16 of the Act and the formalities contemplated under S. 17 of the Act have been satisfied. Practically, I find the language of sub-s. (7) of S. 16 has been adopted in clause 25 of the Scheme except for the expression 'any other law'. As such, the fact that the Scheme has got a statutory force cannot be a matter of any doubt. But, what is sought to be put against the petitioners is that the agreement or award or other instrument that was in force on the day when the scheme was implemented and any agreement or award or other instrument which come into existence subsequent to the implementation of the scheme was implemented and any agreement or award or other instrument which comes into existence subsequent to the implementation of the scheme even though contrary to the provisions of the scheme even though contrary to the provisions of the Scheme will be perfectly in order and can be implemented. On behalf of respondents 2 and 3 it is urged that the expression 'for the time being enforce' occurring in clause 25 of the Scheme would would connote only an agreement or award or other instrument that was in force on the day when the scheme was implemented. In my view, this submission put forth on behalf of respondents 2 and 3 is fallacious.

5. The Act has come to be enacted providing for the acquisition and transfer of shares of Indian Insurance companies and undertaking of other existing insurers in order to serve better the needs of the economy by securing the development of general insurance business in the best interests of the community and to ensure, that the operation of the economic system does not result in the concentration of wealth to the common detriment, for the regulation and control of such business and for matters connected therewith or incidental thereto. It is obvious that one of the intendments of the Act was to regulate and control the business of the Insurance Companies and matters connected therewith or incidental thereto. Chapter V of the Act in which Ss. 16 and 17 are found, deals with schemes for reorganisation of general insurance business. The Scheme has come to be framed pursuant to powers conferred under S. 16(1)(g) of the Act. It has come to be framed to provide for the rationalisation and revision of pay scales and other terms and conditions of employees working in supervisory, clerical and subordinate position under insurers. The provisions of the Act and the scheme framed thereunder are self contained and they form a Code by themselves. The intendment is obvious that the provisions of S. 16 of the Act and the Schemes framed thereunder shall override any other law or any agreement or award or other instrument which runs contrary to the provisions of the section and the shame irrespective of the fact whether such law or agreement or award or other instrument is one which was in force at the time of the coming into force of the Act and the implementation of the scheme, or which came into existence subsequent to the Act and the scheme. Otherwise, the very object of the Act and the scheme will be defeated. It could not have been the intention the Legislature, when it enacted the Act and the framers of the scheme when the scheme was framed, to limit the overriding effect of the provisions of the Act and the scheme only to the law or agreement or award or other instrument existing at the commencement of the Act or the implementation of the scheme, because they must have anticipated even at the time of the passing of the Act and the framing of the Scheme that any other law or agreement or award or other instrument made in future is likely to effect the provisions of the Act and the scheme framed thereunder. When I put a specific question to the learned Counsel appearing for respondents 2 and 3 as to whether a subsequent agreement between the employee and the company, abrogating all or any of the benefits conferred on the employee under the scheme can be entered into after the Scheme and as to whether such an agreement can be enforced in spite of the provisions of the Act and a Scheme, the learned counsel could not give an affirmative answer.

6. The set of expressions 'for the time being in force' has been the subject matter of consideration in judicial precedents also, while construing similar expressions occurring in sub-s. (4) of S. 132 of the Madhya Pradesh Municipal Corporation Act 243 of 1956, a Division Bench of the Madhya Pradesh High Court (Indore Bench) in D. Kasturchandji v. State : AIR1967MP268 observed as follows :

'That sub-section no doubt provides that the imposition of any tax under this section shall be subject to the provisions of any other enactment for the time being in force. The expression 'any other enactment for the time being in force' does not mean an enactment which was already in force at the time the Corporation imposed a tax under S. 132(1) (a); but means any legislation enacted whether before or after imposition of the tax by the Corporation. The general sense of the phrase 'for the time being' is that of time indefinite and refers to indefinite state the Corporation. The general sense of the phrase 'for the time being' is that of time indefinite and refers to indefinite state of facts which will arise in future and which may very form time to time. See Elision v. Thomas, 1862 31 L.J. Ch. 867.'

In Union of Indian v. Ramdas Oil Mills, A.I.R. 1968 Pat 352, a Division Bench of the Patna High Court held that the set of depressions 'for the time being in force' occurring in S. 47 of the Arbitration Act, 1940, as also in Section 19(1) (g) of the Defence of India Act, 1939 refers to enactments existing at the time of the commencement of the Act as well as those made thereafter. It is worth-while to note the meaning given to the set of expression 'time being' in Stroud's Judicial Dictionary, 4th Edition 1974. Vol. 5, at page 2773, which runs as follows :

'Time being ...... (1) The phrase 'for the time being' may, according to its context, mean the time present, or denote a single period of time; but its general sense is that of time indefinite, and refers to an indefinite state of facts which will arise in the future, and which may (and probably will) vary from time to time (Ellison v. Thomas) (1862) 31 L.J. Ch 867. (1862) 32 L.J. Ch. 32: Coles v. Pack (1869) 5 CP 65. See also Re Gunter's Settlement Trusts, 1949 Ch 502.'

7. Similar views have been taken with reference to the same set of expressions occurring in Section 19(1)(g) of the Defence of India Act 1939 in Dinshaw v. G. B. Badkas. AIR 1969 Bom 161, as well as in State v. Nandalal Dey. : AIR1975Cal130 .

8. In view of the above position in law, it is not possible to countenance and uphold the contention of respondents 2 and 3 that clause 25 of the Scheme could have reference only to an agreement which was in force at the time when the Scheme was implemented and not to any subsequent agreement. The first respondent committed an error in law when he accepted such a construction of clause 25 of the Scheme. Clause 25 will override any agreement or award or other instrument, whether it was in force at the time when the scheme was implemented or it came into existence after the implementation of the Scheme.

9. Mr. A. R. Ramanathan, learned Counsel appearing for the respondents 2 and 3 would submit that travelling allowances etc., would be payable only in case transfers are effected by the company due to business exigencies and of their own accord and not in a case where such transfers are effected at the specific request of the employees. It must be straightway pointed out that such a contention was not put for the before the first respondent. On the other hand, the first respondent points out that it was conceded that the provisions of the Scheme do not lay down or contemplate any distinction between the transfers on administrative grounds and the transfers at the request of the employees. On a reading of all the relevant clause of the Scheme. I am not able of travelling allowance etc. in a case where transfers are effected at the request of he employees. Hence I am not able to appreciate and accept this submission of the learned Counsel appearing for respondents 2 and 3.

10. In the circumstances, I am compelled to interfere in writ proceedings. Accordingly, these write petitions are allowed and the order of the first respondent, dismissing the claim petition, is quashed. In view of the fact that the monetary benefits have already been computed by the first respondent the claim petition will stand ordered as per the computation done by the first respondent. There will be no order as to costs in these writ petitions.


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